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Attorney General Eric Holder has significantly weakened the standards proposed by the National Prison Rape Elimination Commission to combat prison rapes. Without strong standards to hold prison officials accountable for ending prison rape inmates will continue to be victimized by sexual predators. The Bureau of Justice Statistics estimates that 124 adult and juvenile inmates are sexually assaulted in US prisons every day.
There is still time to convince the AG to put teeth back in the standards, but you have to act quickly. Letters commenting on the AG's changes to the standards are due by April 4. I hope each of you will write the Attorney General and express your outrage that the process Congress established to enact tough standards has resulted in weak and ineffective protections. Go here to write the Attorney General today.
Here are just a few of the ways the Attorney General weakened the standards:
- Allows Cross Gender Pat Downs
The Bureau of Justice Statistics has found that a significant number of sexual assaults begin with aggressive pat downs by officers of the opposite sex. This is such a major problem that most prison systems and jails prohibit pat downs by officers of the opposite sex absent exigent circumstances. The Commission banned them unless there is a bona fide emergency. Yet, the Attorney General’s standards allow cross gender pat downs.
- No Prison Rape Standards for Immigration Prisons
The Attorney General ruled that immigration prisons (ICE) do not have to comply with any of the prison rape standards. Horrible rapes and assaults have occurred in ICE prisons. Yet, the AG has exempted them from the standards. If Mr. Holder felt that the DOJ did not have authority over the ICE prisons, he should have asked Congress to give him that authority, and Congress would have done it with no hesitation. Remember, the original Prison Rape Elimination Act was passed unanimously by both houses of Congress when the DOJ clearly had authority over immigration. Under the AG's rule, tens of thousands of foreign detainees are subject to sexual predators, and there are no standards to hold authorities accountable for protecting them.
- Prison Systems May Audit Themselves
For standards to be effective, prisons' compliance should be audited by an outside organization. The Commission's standards required: that all facilities be audited; that audits must be conducted at least every three years by independent and qualified auditors; that the auditors have access to all parts of facilities and all documents; and, that the audits are made available to the legislature and the public.
The Attorney General allows agencies to audit themselves with no guarantee of access to facilities and documents. He suggests that random checks might be instituted in place of individual audits of every facility. He also suggests that audits might be required only if cause is shown. That is a recipe for disaster. "If it isn't counted, it isn't done" is a reality in every bureaucracy, and prisons are no exception. The AG’s revisions of the standards make an accurate monitoring of compliance with the standards very hard to accomplish, allows possibly biased auditors and allows the results to be hidden from the public.
- No Need To Actually Protect Inmates -- Having a Plan is Enough
The Commission's standards require a Zero Tolerance Policy, and that it be enforced in each facility to provide a basic level of safety for inmates. The AG also requires a Zero Tolerance Policy, but he removes the requirement that it be enforced and substitutes a requirement that the prisons outline its approach to prevention. There is no requirement that the plan be enforced; only that they have a plan. The AG does not require that inmates actually are protected, but only that there be a plan to do so. And what is the consequence if the plan is not implemented? Well, they have to develop another plan. This is not a standard at all, but merely a call for planning.
- Estimated Costs Are Grossly Inflated
The Prison Rape Elimination Act wisely provided that the Attorney General shall not establish a national standard "that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities." Congress didn’t want a “runaway” commission to impose absurdly expensive requirements on prisons such as mandating that all prisons be replaced with new construction. However, the AG has significantly exaggerated the costs of complying with the Commission’s standards.
For example, they interpreted standard PP7 to require electronic surveillance. That is not what the Commission’s standard requires, and it is clear from the record that our standards did not mandate that. The proposed standard merely says that electronic surveillance should be considered as one method of protecting inmates. By misinterpreting the standard, DOJ inflated the upfront costs to 24x the actual costs. Take out the amount caused by their erroneous interpretation (which they admit is 96% of the upfront costs) and the total upfront cost is reduced to a $260 million, out of a total of $70 billion spent on prisons this year. That is, to start complying with the Commission’s standards it will cost prisons and jails a mere .00371 of total spending on prisons – or less than 4/10ths of 1%. For the AG to say that this amounts to “a substantial cost” compared to the costs of all prisons is laughable.
Why Would the AG Weaken the Standards?
It is difficult to imagine that an Attorney General with so much experience in the justice system would not understand the magnitude of rape in our prisons, and would underestimate the damage in human terms caused by our prisons’ failure to protect inmates from sexual aggression. So, why would Eric Holder propose to weaken the standards? The explanation I have been told by people close to the professional staff at DOJ is that the career employees were planning to recommend only minor changes to the Commission’s standards. However, the “political people” took it out of their hands and caved in to pressure from the unions that represent prison employees. It appears that with an eye toward 2012, the unions held sway. If that is true, it is a sad day for the Department of Justice and a very sad day for inmates who will continue to be prey to sexual predators.
A telling comment on the AG’s proposed standards came from a question by a renowned expert on prisons, “On the day after the new standards go into effect, what will the Federal Bureau of Prisons have to do that is different than what it does now?” Shockingly, the DOJ employees could not think of a single thing.
The former members of the National Prison Rape Elimination Commission will hold a press conference on March 23 to express their strong opposition to the changes the Attorney General has made to their recommended standards. These diverse commissioners, who spent several years studying the scandal of prison rape and learning the best ways to prevent it, are united in urging the public to join them in opposing the weakening of the standards.
There is still time to press the Attorney General to change course and adopt stronger standards. Federal law allows the public to submit comments until April 4. Please go to our website where you can send a letter to the Attorney General immediately.
No prison sentence, no matter how heinous the crime, includes being raped. It is our responsibility to protect those who cannot speak for themselves.
In His service,
Pat Nolan
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